Constitution Daily

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Do conflict of interest laws conflict with free speech?

May 17, 2011 by Holly Munson


On April 27, the Supreme Court heard its final oral argument of the term. Here's what you need to know about the mundane-sounding but potentially precedent-setting case of Nevada Commission on Ethics v. Carrigan.


Michael Carrigan thought he was doing the right thing.

Photo by Flickr user anahon

It was 2006, and Carrigan, an elected member of the city council in Sparks, Nev., was preparing for a hearing.

The council was to vote on whether to approve an application for a new hotel-casino. Certainly, hotel-casinos are nothing new in Nevada. But for Carrigan, there was a catch: his former campaign manager was a business consultant for the company proposing the project. Carrigan checked with the city attorney; he was advised to disclose at the hearing his friend's role in the project. Carrigan did so, then voted for the application. In the end, the application was rejected 3-2 by the council.

Within a month, however, several complaints were filed with the Nevada Commission on Ethics arguing that Carrigan had used his position as councilman to seek to benefit his friend. The commission censured Carrigan, ruling that his actions violated a state law which requires elected officials to recuse, or disqualify, themselves from voting on an issue that involves a member of their household, a family member, an employer, or someone with whom they have a business relationship--or "any other commitment or relationship that is substantially similar to a commitment or relationship" like the others specified.

The case against Carrigan made its way to the Nevada Supreme Court, which ruled 5-1 that the catch-all provision of the Nevada conflict of interest law ("any other commitment...") was too broad, and that "the act of voting by a public officer is protected speech under the First Amendment." They cited the Supreme Court's (controversial) Citizens United v. Federal Election Commission decision, which stated that "laws that burden political speech are subject to strict scrutiny." The dissenting justice argued that the law was not in violation of the First Amendment because its "target is conduct--acts of governance--not personal, expressive speech."


All 50 states have some regulation on elected officials' conflicts of interest, often using broad terms to define those conflicts of interest, as with Nevada's law. Now that the case is before the U.S. Supreme Court, the challenge will be to balance the benefit of conflict of interest regulations (namely, promoting an ethical voting process) with the potential harm of creating overly broad limitations on elected officials' voting.

The value of recusal laws has been recognized since the early days of the nation. Thomas Jefferson once wrote:

"Where the private interests of a member are concerned in a bill or question, he is to withdraw. And where such an interest has appeared, his voice has been disallowed, even after division. In a case so contrary not only to the laws of decency, but to the fundamental principles of the social compact, which denies to any man to be a judge in his own cause, it is for the honor of the House that this rule of immemorial observance should be strictly adhered to ("The Writings of Thomas Jefferson," p. 368)."

The question, however, is how we should define the "private interests" that would disqualify an official from voting--and if an official's vote qualifies as protected speech, then any laws that regulate them would come under strict scrutiny under the First Amendment.


During the April 27 oral argument, several justices, particularly Justice Antonin Scalia, seemed eager to address the free speech issue. If the court does rule that an elected officials' vote qualifies as protected speech, the case has the potential to be the next Citizens United--for better or for worse. The court's decision is expected to be released in June.


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